0:00:04 > 0:00:07Scotland's legal profession is built on a code of conduct
0:00:07 > 0:00:11which demands honesty, trust and personal integrity.
0:00:14 > 0:00:16But what happens when things go wrong?
0:00:16 > 0:00:20We investigate a system accused of protecting its own...
0:00:20 > 0:00:23There is absolutely no doubt that the Law Society
0:00:23 > 0:00:25is doing its job properly.
0:00:25 > 0:00:29..a system which allows the corrupt to carry on.
0:00:29 > 0:00:31If somebody's been dishonest once,
0:00:31 > 0:00:34the likelihood is they will be dishonest again.
0:00:34 > 0:00:37I go undercover to track down a solicitor who was repeatedly
0:00:37 > 0:00:41caught misbehaving yet never struck off.
0:00:41 > 0:00:46Tonight, BBC Scotland Investigates - Lawyers Behaving Badly.
0:00:58 > 0:00:59It's often been said
0:00:59 > 0:01:03Scotland's legal system is the envy of the world,
0:01:03 > 0:01:07administered by a profession trusted and valued.
0:01:07 > 0:01:11But is that profession failing to bring justice against its own?
0:01:11 > 0:01:15I've spent the past few months investigating a process where
0:01:15 > 0:01:19lawyers quietly decide on the fate of their own dishonest
0:01:19 > 0:01:21or unfit colleagues.
0:01:21 > 0:01:25A process which seems to allow corrupt solicitors
0:01:25 > 0:01:29to continue in practice, unmonitored and unpunished.
0:01:33 > 0:01:37This high-rise block on the outskirts of Paisley
0:01:37 > 0:01:41is home and office to a man who was one of Scotland's revered
0:01:41 > 0:01:43and respected legal profession.
0:01:44 > 0:01:48I say "was", because John Atuahene, the man in there,
0:01:48 > 0:01:52is one of the few solicitors in Scotland to have been struck off.
0:01:52 > 0:01:55A few years ago, a disciplines tribunal
0:01:55 > 0:01:58deemed him to be totally and utterly incompetent
0:01:58 > 0:02:00and his name was removed from the solicitors' roll.
0:02:00 > 0:02:04The thing is, I know he's running a nice little sideline
0:02:04 > 0:02:08in offering his legal services to private clients for money.
0:02:09 > 0:02:13Being struck off means you can't call yourself a solicitor
0:02:13 > 0:02:15in any shape or form.
0:02:15 > 0:02:19Prefixing it with the word "retired" on his LinkedIn page means nothing.
0:02:19 > 0:02:22The internet is where Atuahene advertises himself
0:02:22 > 0:02:24for both paid and unpaid legal work.
0:02:27 > 0:02:30I've arranged a meeting with Mr Atuahene as a journalist
0:02:30 > 0:02:35to talk about some of his previous cases.
0:02:35 > 0:02:36- Come in.- Thank you.
0:02:36 > 0:02:40'What he doesn't know is that I'll be secretly filming him.'
0:02:53 > 0:02:57Atuahene eventually admits to me he was struck off,
0:02:57 > 0:03:01but he's got a plan to get round this permanent ban.
0:03:01 > 0:03:05He wants to retrain as an immigration advisor
0:03:05 > 0:03:07and then use this status to help register
0:03:07 > 0:03:09with the Law Society in England.
0:03:23 > 0:03:28Remember, John Atuahene was struck off for being hopelessly incompetent.
0:03:28 > 0:03:32It makes you wonder the kind of legal advice he'd be giving,
0:03:32 > 0:03:36yet he intends to advise the most vulnerable clients.
0:03:36 > 0:03:41But at least he seems flexible when it comes to his prices.
0:03:53 > 0:03:56Later that day, a member of our production team
0:03:56 > 0:03:59visits his office, posing as a domestic abuse victim
0:03:59 > 0:04:02with a financially controlling partner.
0:04:24 > 0:04:27What he doesn't say is that he won't be there
0:04:27 > 0:04:30to enforce that legally binding document, since,
0:04:30 > 0:04:35as a struck-off solicitor, he can't legally represent her in court.
0:04:37 > 0:04:41Property, divorce, death, neighbourly disputes,
0:04:41 > 0:04:44criminal accusations - it's fair to say that at some point
0:04:44 > 0:04:47all of us will need a solicitor.
0:04:47 > 0:04:51But what happens when things go wrong?
0:04:54 > 0:04:59Since 1950, 170 solicitors in Scotland have been struck off
0:04:59 > 0:05:04for misdemeanours including theft, dishonesty and money laundering.
0:05:04 > 0:05:06That's less than three a year
0:05:06 > 0:05:10out of a profession of more than 10,500.
0:05:10 > 0:05:13So how does the system of regulating the profession work?
0:05:13 > 0:05:15You could think of it like a family tree
0:05:15 > 0:05:18with your solicitor at the bottom.
0:05:18 > 0:05:20The first port of call for complaints is
0:05:20 > 0:05:22the Scottish Legal Complaints Commission.
0:05:22 > 0:05:24If it's about service, they deal with it.
0:05:24 > 0:05:27But if it's about conduct, it goes here,
0:05:27 > 0:05:30to the Law Society of Scotland to investigate.
0:05:30 > 0:05:32If they decide it's serious enough,
0:05:32 > 0:05:37it goes to the Scottish Solicitors' Discipline Tribunal for prosecution.
0:05:38 > 0:05:41Under this system, the Law Society of Scotland is
0:05:41 > 0:05:46responsible for both representing and regulating solicitors.
0:05:46 > 0:05:48But can this dual role work?
0:05:48 > 0:05:52Its regulation committee oversees solicitors' conduct.
0:05:52 > 0:05:55The current system is actually pretty good.
0:05:55 > 0:05:57It provides a simple,
0:05:57 > 0:06:01single point of entry for consumers who have concerns.
0:06:01 > 0:06:06It involves solicitors in their own regulation in terms of conduct
0:06:06 > 0:06:10and I think every profession should take some responsibility
0:06:10 > 0:06:12for their own conduct.
0:06:12 > 0:06:16The Law Society's keen to stress it regulates in the public interest,
0:06:16 > 0:06:20and half the members of its regulation committee
0:06:20 > 0:06:23are lay people - yet what of cases like John Atuahene?
0:06:23 > 0:06:28He is an example of good regulation in that he was struck off.
0:06:28 > 0:06:31But it shouldn't end there. You feel we should continue to monitor?
0:06:31 > 0:06:35Absolutely. The Law Society will pursue where it has the evidence.
0:06:35 > 0:06:38So the information I've given you on John Atuahene,
0:06:38 > 0:06:39you will take and do what?
0:06:39 > 0:06:42Yes, I was not aware he was acting as a solicitor.
0:06:42 > 0:06:44He may not be calling himself a solicitor
0:06:44 > 0:06:46even if people are paying him for legal services.
0:06:46 > 0:06:49- He's calling himself a retired solicitor.- Hmm.
0:06:49 > 0:06:51Well, that is interesting.
0:06:51 > 0:06:55The Law Society of Scotland later said no action could be taken
0:06:55 > 0:06:58against Mr Atuahene unless evidence existed
0:06:58 > 0:07:01that he was describing himself as a practising solicitor
0:07:01 > 0:07:06or offering legal services in reserved areas of law.
0:07:06 > 0:07:08In a statement, John Atuahene said
0:07:08 > 0:07:12there was no misrepresentation whatsoever in stating he had
0:07:12 > 0:07:15permanently retired from practice as a solicitor.
0:07:15 > 0:07:17He said being struck off did not impair
0:07:17 > 0:07:19his ability to give legal advice
0:07:19 > 0:07:23and since leaving practice, he has given advice to many people online
0:07:23 > 0:07:25and hasn't charged for it.
0:07:25 > 0:07:28He said he took no money from the production team member
0:07:28 > 0:07:32for the advice he gave her, and has no intention of moving to England
0:07:32 > 0:07:34to register with the Law Society there.
0:07:35 > 0:07:40The regulatory system has long been criticised as slow and drawn-out.
0:07:40 > 0:07:44Atuahene's case took four years, during which he continued to provide
0:07:44 > 0:07:47legal advice to unsuspecting clients.
0:07:47 > 0:07:50The same has been shown to be true for the rogue solicitor
0:07:50 > 0:07:53for whom it can be business as usual.
0:07:58 > 0:08:03The Usher Hall - one of Edinburgh's most famous landmarks,
0:08:03 > 0:08:06made possible by a very generous donation
0:08:06 > 0:08:08back in the 1890s from the Usher family,
0:08:08 > 0:08:10who had a huge whisky fortune.
0:08:12 > 0:08:16It took them 16 years to decide where to put it.
0:08:16 > 0:08:18Stuart Usher is a descendant.
0:08:19 > 0:08:22But today, instead of living the decadent lifestyle
0:08:22 > 0:08:26of his forebears, he's selling the Usher heritage to tourists.
0:08:26 > 0:08:30It's not to secure his family's place in history -
0:08:30 > 0:08:32it's because he needs the cash.
0:08:35 > 0:08:40We were a very wealthy family in Scotland,
0:08:40 > 0:08:43high society and all this type of thing.
0:08:43 > 0:08:49We had estates in the Borders, near Edinburgh, in the Highlands,
0:08:49 > 0:08:51up in Caithness, all over the place.
0:08:51 > 0:08:55And I, um...
0:08:55 > 0:08:57Well, we lost everything.
0:08:58 > 0:09:02Stuart Usher's story begins in 1999.
0:09:02 > 0:09:05He alleged his family's trust fund had been mismanaged,
0:09:05 > 0:09:07leaving him with little.
0:09:07 > 0:09:10Setting out to try and prove professional negligence,
0:09:10 > 0:09:15he hired the services of one Thomas Hugh Murray.
0:09:16 > 0:09:21He assured me that he would carry out about four or five,
0:09:21 > 0:09:26four or five major tasks within a matter of weeks,
0:09:26 > 0:09:32but for that he would need £3,500
0:09:32 > 0:09:35as an advance to get him going on it.
0:09:36 > 0:09:41Legally, that payment has to be put into a separate client account
0:09:41 > 0:09:44which a solicitor can't draw on until he's done the work.
0:09:44 > 0:09:49But Murray immediately transferred the cash into his firm's account.
0:09:49 > 0:09:51Stuart Usher didn't know this.
0:09:51 > 0:09:53As time wore on, he felt Murray
0:09:53 > 0:09:56did little of the work he'd paid him for.
0:09:56 > 0:10:01In essence, he never did the job that I'd given the £3,500 to do.
0:10:01 > 0:10:03What did you then decide to do?
0:10:03 > 0:10:07I got rid of him, and then reported him to the Law Society.
0:10:09 > 0:10:10As Stuart Usher's case began
0:10:10 > 0:10:13to make its way through the complaints process,
0:10:13 > 0:10:16Murray was already dealing with his next client.
0:10:17 > 0:10:20In 2000, Neil McKechnie hired Murray to represent him
0:10:20 > 0:10:22in a divorce and employment case,
0:10:22 > 0:10:26which he believed could be worth tens of thousands of pounds.
0:10:26 > 0:10:30- Neil?- Hi.- I'm Sam from the BBC.
0:10:30 > 0:10:32- Hi. Pleased to meet you. - Nice to meet you. How you doing?
0:10:32 > 0:10:35'He said he was an employment specialist.'
0:10:35 > 0:10:43He also said he was proficient in matrimonial situations as well,
0:10:43 > 0:10:46so he said he could handle both things no problem.
0:10:46 > 0:10:49I trusted him.
0:10:49 > 0:10:53A year into the case, something strange happened.
0:10:53 > 0:10:57He said I was no longer to go to his office,
0:10:57 > 0:11:01that he'd moved office, but not to worry about it
0:11:01 > 0:11:05because everything was going to be exactly the same, nothing would change.
0:11:06 > 0:11:09The office change was because Murray was now bankrupt.
0:11:09 > 0:11:13That meant he was automatically suspended as a solicitor,
0:11:13 > 0:11:15a fact he failed to tell Neil McKechnie,
0:11:15 > 0:11:19as well as a German client Murray was also representing.
0:11:19 > 0:11:22Time passed and Neil began to find it impossible
0:11:22 > 0:11:24to get in touch with Murray.
0:11:24 > 0:11:28Eventually, in 2004, he called the Law Society in a panic
0:11:28 > 0:11:32and said he couldn't get in contact with his solicitor.
0:11:32 > 0:11:36Whilst he was working for you, he was suspended?
0:11:36 > 0:11:39- Yes.- And you didn't know this?
0:11:39 > 0:11:43I had no idea that he was a suspended lawyer
0:11:43 > 0:11:47but was continuing, you know, to handle both of my cases.
0:11:48 > 0:11:52Now, I'll show you, there's a bust of Andrew Usher in here.
0:11:52 > 0:11:55Several years after first complaining,
0:11:55 > 0:11:57Usher's case against Murray finally arrived
0:11:57 > 0:12:00at the Scottish Solicitors' Discipline Tribunal.
0:12:00 > 0:12:05The tribunal found Murray had eventually done work worth £3,500,
0:12:05 > 0:12:09but it also found him guilty of professional misconduct.
0:12:09 > 0:12:13The tribunal's damning report stated he was guilty of deception,
0:12:13 > 0:12:16dishonesty and had misled his client.
0:12:16 > 0:12:20A second case against Murray relating to the German client found the same.
0:12:20 > 0:12:23And in Neil McKechnie's case, Murray was found guilty
0:12:23 > 0:12:25of inadequate professional service
0:12:25 > 0:12:28and ordered to pay back £3,000 of fees
0:12:28 > 0:12:31and £1,000 compensation.
0:12:31 > 0:12:34Despite all this, Murray was never struck off.
0:12:36 > 0:12:40We've invited three leading experts in legal ethics and regulation
0:12:40 > 0:12:42to look at some of our cases.
0:12:42 > 0:12:46All are based in England, where the regulation of solicitors
0:12:46 > 0:12:51lies with an independent body linked to, but not within, the Law Society.
0:12:51 > 0:12:53What would they think of Mr Murray?
0:12:53 > 0:12:56Two express findings of dishonesty within the same year.
0:12:56 > 0:12:58An obvious strike-off.
0:12:58 > 0:13:02Exactly. This is really at a very high level of seriousness.
0:13:02 > 0:13:06Even allowing for the fact he wasn't struck off on the first offence,
0:13:06 > 0:13:09one would have expected him most definitely to have been struck off.
0:13:09 > 0:13:12The seriously strange result in this case,
0:13:12 > 0:13:14which I would go so far as to say is bizarre,
0:13:14 > 0:13:18is that despite a sequence of separate findings of dishonesty,
0:13:18 > 0:13:22the tribunal's penalty is a censure,
0:13:22 > 0:13:25that is to say a reprimand, a slap on the wrist,
0:13:25 > 0:13:28with some restrictions on his practising certificate.
0:13:28 > 0:13:31So I think we're agreed here.
0:13:31 > 0:13:35- Extraordinary!- Three factors - client, deception, money -
0:13:35 > 0:13:38usually involves striking off.
0:13:40 > 0:13:44Self-regulation used to be the norm in England and Wales,
0:13:44 > 0:13:46but a number of high-profile cases
0:13:46 > 0:13:49saw a move from this closed-shop approach
0:13:49 > 0:13:51to a more independent system
0:13:51 > 0:13:54the Government hoped would restore public faith.
0:13:54 > 0:13:57This is the man charged with ensuring it works.
0:13:57 > 0:14:00The nature of the role we undertake is that we're independent.
0:14:00 > 0:14:03We regulate in the public interest
0:14:03 > 0:14:06and not in the interest of solicitors.
0:14:06 > 0:14:11It's about confidence, you know, transparency for the public
0:14:11 > 0:14:15and the public knowing that they have a regulator
0:14:15 > 0:14:18who is solely interested in them.
0:14:18 > 0:14:22The SRA told me that dishonesty was the line not to be crossed.
0:14:22 > 0:14:26If a tribunal failed to strike off in these cases,
0:14:26 > 0:14:29the SRA would take action.
0:14:29 > 0:14:33We've had cases recently where the tribunal has found dishonesty
0:14:33 > 0:14:36but not struck a solicitor off, and we will appeal those.
0:14:36 > 0:14:39We have appealed those to the High Court and had them overturned.
0:14:39 > 0:14:43So it appears, under the new regime in England,
0:14:43 > 0:14:47Murray would have been struck off. In Scotland he wasn't.
0:14:47 > 0:14:49How much of that failure
0:14:49 > 0:14:52to drive Murray and others like him out of the profession
0:14:52 > 0:14:57lies within the Law Society's desire to investigate its own?
0:14:57 > 0:15:01The Law Society investigates conduct complaints
0:15:01 > 0:15:03and takes them to the tribunal.
0:15:03 > 0:15:05They do not make the decisions.
0:15:05 > 0:15:10And therein lies the problem. The Law Society investigates the cases.
0:15:10 > 0:15:12Yes, it does.
0:15:12 > 0:15:14So this is solicitors marking their own homework?
0:15:14 > 0:15:16This is the police policing the police.
0:15:16 > 0:15:19And all of those decisions are taken by committees,
0:15:19 > 0:15:22which are 50% non-solicitors.
0:15:22 > 0:15:25But the Law Society is investigating.
0:15:25 > 0:15:29The Scottish Legal Complaints Commission has oversight of what the Law Society does.
0:15:29 > 0:15:33There is absolutely no doubt the Law Society is doing its job properly.
0:15:37 > 0:15:40But what happens when the dishonest solicitor remains
0:15:40 > 0:15:44and we are the ones paying their fees through legal aid?
0:15:46 > 0:15:48High profile criminal cases like these
0:15:48 > 0:15:50can mean big business for law firms,
0:15:50 > 0:15:54whose bills are picked up by the public in the form of legal aid.
0:15:54 > 0:15:58Last year, the legal aid bill for Scotland was £150 million.
0:16:01 > 0:16:04I decided to cross-reference the name of each and every solicitor
0:16:04 > 0:16:08on the Criminal Legal Aid Register with the tribunal's database.
0:16:08 > 0:16:12I discovered 22 had been found guilty of professional misconduct,
0:16:12 > 0:16:16yet still claim access to public funds.
0:16:19 > 0:16:21Last year the firms they work for
0:16:21 > 0:16:27made a total of £5.7 million from criminal legal aid.
0:16:27 > 0:16:31Four solicitors were guilty of misleading their clients,
0:16:31 > 0:16:34one convicted of domestic abuse and assault.
0:16:34 > 0:16:37Another, a former clerk of a court, was censured after being
0:16:37 > 0:16:40convicted of embezzling fines.
0:16:40 > 0:16:43All of them on the Criminal Legal Aid Register, giving them
0:16:43 > 0:16:45access to public funds.
0:16:45 > 0:16:49And all of them represented by the Law Society.
0:16:50 > 0:16:52The Law Society of Scotland is not
0:16:52 > 0:16:55responsible for the Criminal Legal Aid Register.
0:16:55 > 0:16:59The Legal Aid Board decides who is on their register
0:16:59 > 0:17:02and who they are using to deal with legal aid.
0:17:02 > 0:17:05I cannot comment on what you tell me...
0:17:05 > 0:17:08Are you shocked by what I've told you?
0:17:08 > 0:17:11I would be shocked if it were the case that these people had done
0:17:11 > 0:17:14things which made them ineligible to be on the Legal Aid Register.
0:17:14 > 0:17:17Oh, I'm sorry, a former clerk of a court
0:17:17 > 0:17:21convicted for embezzling fines, come on.
0:17:21 > 0:17:22I-I...
0:17:22 > 0:17:24You don't see that that should be
0:17:24 > 0:17:26a barrier to being on a Criminal Legal Aid Register?
0:17:26 > 0:17:29You would need to raise that with the Legal Aid...
0:17:29 > 0:17:33I'm asking your opinion, you're the Law Society which represents Scotland's solicitors.
0:17:33 > 0:17:36- My opinion would be that if that were the case...- It is the case.
0:17:36 > 0:17:38..then I would be very, very surprised by it.
0:17:40 > 0:17:45We decided to carry out the same exercise with the Civil Legal Aid Register.
0:17:45 > 0:17:48We found 22 firms employing solicitors who've been
0:17:48 > 0:17:51found guilty of professional misconduct.
0:17:51 > 0:17:53Between these firms last year,
0:17:53 > 0:17:57they netted almost £1.7 million in public funds.
0:17:57 > 0:17:59Three firms employed solicitors who had been
0:17:59 > 0:18:03disciplined for the way they handled legal aid cases.
0:18:04 > 0:18:08Now, astonishingly, the Civil Register includes
0:18:08 > 0:18:10the company of Robertson and Ross -
0:18:10 > 0:18:14a firm removed from the Criminal Legal Aid Register
0:18:14 > 0:18:17for submitting fake travel claims.
0:18:17 > 0:18:19Despite this, last year,
0:18:19 > 0:18:24the company made more than £160,000 in civil legal aid.
0:18:28 > 0:18:31In a statement, Robertson and Ross said it was an ex-employee
0:18:31 > 0:18:36who claimed fake travel expenses and the full amount was repaid.
0:18:36 > 0:18:40They said "neither the firm or any current member or employee has
0:18:40 > 0:18:42"any formal finding of dishonesty against them
0:18:42 > 0:18:46"and the firm should remain on the Civil Legal Aid Register."
0:18:48 > 0:18:51The Scottish Legal Aid Board - or SLAB - told us
0:18:51 > 0:18:54they didn't regulate the legal profession, but did monitor
0:18:54 > 0:18:57solicitors and act decisively where they could,
0:18:57 > 0:18:59such as when the legal aid fund was abused
0:18:59 > 0:19:02or when their code of practice was breached.
0:19:02 > 0:19:06They removed Robertson and Ross from the Criminal Legal Aid Register.
0:19:06 > 0:19:10However, they said powers to exclude firms from civil legal aid were with
0:19:10 > 0:19:15the Law Society of Scotland until 2011 when they transferred to SLAB.
0:19:20 > 0:19:23At the heart of almost all the cases which
0:19:23 > 0:19:26come in front of a discipline tribunal is an unhappy client.
0:19:26 > 0:19:29We discovered that over the past four years,
0:19:29 > 0:19:33the Scottish Legal Complaints Commission has accepted
0:19:33 > 0:19:36just over 2,000 complaints from clients.
0:19:36 > 0:19:40Just 17% were resolved by mediation or investigation.
0:19:40 > 0:19:42And only 9% were upheld.
0:19:43 > 0:19:47And of those complaints passed to the Law Society of Scotland,
0:19:47 > 0:19:50last year more than half resulted in no action.
0:19:55 > 0:19:57Numerous complaints were made against this man,
0:19:57 > 0:20:02John Gerard O'Donnell, a solicitor of more than 30 years.
0:20:02 > 0:20:05Over the last five years, he's been suspended from practice twice,
0:20:05 > 0:20:08been bankrupt and repeatedly had negligence claims
0:20:08 > 0:20:11made against him by unhappy clients.
0:20:11 > 0:20:12At no point did the system deem him
0:20:12 > 0:20:15serious enough a problem to strike him off.
0:20:17 > 0:20:21We asked our panel to look at the way O'Donnell was dealt with
0:20:21 > 0:20:23in an early SSDT case, which related
0:20:23 > 0:20:28to his borrowing £60,000 of clients' money without consent.
0:20:28 > 0:20:32I can't get my head round borrowing in this context.
0:20:32 > 0:20:33Now, can somebody explain to me
0:20:33 > 0:20:37how you can borrow something without anybody knowing about it?
0:20:37 > 0:20:39That's just taking.
0:20:39 > 0:20:43They actually say in the judgment they would have struck him off,
0:20:43 > 0:20:45but the clients hadn't complained...
0:20:45 > 0:20:47We're dealing with a case of dishonesty
0:20:47 > 0:20:49and that affects the reputation of the profession.
0:20:49 > 0:20:53I would have expected this to result in...in striking-off.
0:20:53 > 0:20:57The critical thing here is the risk factor.
0:20:57 > 0:20:59If somebody's been dishonest once,
0:20:59 > 0:21:02the likelihood is they will be dishonest again,
0:21:02 > 0:21:03unless they are stopped.
0:21:03 > 0:21:06But he wasn't stopped.
0:21:06 > 0:21:08The tribunal simply restricted his licence
0:21:08 > 0:21:12so that he had to work under the supervision of another solicitor.
0:21:12 > 0:21:16Here he is turning up at the court of session in Edinburgh to
0:21:16 > 0:21:20answer the most recent allegations, claims that he adopted the identity
0:21:20 > 0:21:24of that supervising solicitor as a way of getting round the suspension.
0:21:24 > 0:21:27If these current allegations against John Gerard O'Donnell
0:21:27 > 0:21:32are proven in court, our panel's view is this would be very serious.
0:21:32 > 0:21:35That goes beyond professional culpability. This is deceit.
0:21:35 > 0:21:37You're not comfortable with this situation?
0:21:37 > 0:21:39Ah, well, would anybody be?
0:21:39 > 0:21:43This case is not closed. The Law Society is pursuing Mr O'Donnell
0:21:43 > 0:21:47and they are pursuing him according to the rules and regulations
0:21:47 > 0:21:54that relate to solicitors who have broken the rules in some way, but
0:21:54 > 0:21:57it is not a closed case and he is not allowed to practise at present.
0:21:57 > 0:22:00Are you happy with the level of robustness of the SSDT
0:22:00 > 0:22:02in the case of John O'Donnell?
0:22:03 > 0:22:05I would say on reflection, no.
0:22:05 > 0:22:08I think, what he'd done in the past,
0:22:08 > 0:22:11possibly it should have been more than just
0:22:11 > 0:22:13a restriction on his practice.
0:22:13 > 0:22:17But that's me in hindsight looking at it with nothing like
0:22:17 > 0:22:20the level of detail that the disciplinary tribunal did.
0:22:21 > 0:22:23The Scottish Solicitors' Discipline Tribunal
0:22:23 > 0:22:27hears all serious conduct cases against solicitors.
0:22:27 > 0:22:30Last year, they struck off nine of them.
0:22:30 > 0:22:32But is this robust enough?
0:22:32 > 0:22:35It is robust in the sense that it doesn't just
0:22:35 > 0:22:37give convictions on the basis
0:22:37 > 0:22:40that somebody's brought before us charged by the Law Society.
0:22:40 > 0:22:46We are mindful, particularly when reminded by the lay members,
0:22:46 > 0:22:48of the duty to the public.
0:22:48 > 0:22:52One is always concerned when there is deception,
0:22:52 > 0:22:58but you can have a situation where solicitors simply lose the place.
0:22:58 > 0:23:04They make false representations in order to improve
0:23:04 > 0:23:07their client's position, not necessarily their own.
0:23:08 > 0:23:12And you would take that into account in deciding what the penalty was.
0:23:12 > 0:23:14But there's no suggestion that such conduct
0:23:14 > 0:23:17wasn't deemed to be professional misconduct.
0:23:17 > 0:23:22So there are levels of dishonesty which sit comfortably with you,
0:23:22 > 0:23:23satisfactorily with you?
0:23:23 > 0:23:27No, there's no question of saying sitting comfortably with me.
0:23:27 > 0:23:29- I've told you... - OK, that you would accept?
0:23:29 > 0:23:32No, I'd be concerned on any occasion that a solicitor
0:23:32 > 0:23:35was guilty of any form of dishonesty.
0:23:35 > 0:23:39One has to assess the extent to which anyone suffered
0:23:39 > 0:23:41in consequence of that dishonesty.
0:23:41 > 0:23:45You have to take into consideration the likelihood of re-offending
0:23:45 > 0:23:48and then take a decision.
0:23:48 > 0:23:51But you make it sound as if it's commonplace - it isn't.
0:23:52 > 0:23:56Normally, dishonesty will result in striking off.
0:23:59 > 0:24:02Remember Thomas Hugh Murray?
0:24:02 > 0:24:04The solicitor who was bankrupt
0:24:04 > 0:24:08and found guilty twice of professional misconduct?
0:24:08 > 0:24:10It's clear that, despite the lapse of time,
0:24:10 > 0:24:13his former clients remain aggrieved.
0:24:13 > 0:24:16Neil McKechnie wants his due compensation,
0:24:16 > 0:24:19and Stuart Usher still feels Murray failed to do a proper job
0:24:19 > 0:24:22for the £3,500 he paid him.
0:24:23 > 0:24:26I still haven't given up on my £3,500.
0:24:26 > 0:24:28I want that 3,000, plus interest.
0:24:28 > 0:24:31He owes me fees of 6,000 or thereabouts,
0:24:31 > 0:24:34plus £1,000 compensation.
0:24:34 > 0:24:36I want it back.
0:24:37 > 0:24:40The Tribunal decided not to strike him off,
0:24:40 > 0:24:43and Murray decided not to pay Neil McKechnie the fees
0:24:43 > 0:24:47and compensation he was awarded, despite being ordered to.
0:24:47 > 0:24:50Instead, he returned to a home abroad.
0:24:53 > 0:24:55Behind me is the province of Lucca,
0:24:55 > 0:25:00and it sits right at the bottom of the beautiful hills of Tuscany.
0:25:00 > 0:25:03Now, in one of those hills is a 400-year-old farmhouse
0:25:03 > 0:25:06and for the last few years, it's been home
0:25:06 > 0:25:08to one certain Scottish solicitor.
0:25:13 > 0:25:16Borgo a Mozzano is the area where Thomas Murray
0:25:16 > 0:25:20has been living and working, thus making recovery of compensation
0:25:20 > 0:25:22difficult for Neil McKechnie.
0:25:23 > 0:25:28Tom, as he now calls himself, is working as an estate agent.
0:25:28 > 0:25:30It wasn't that hard to track him down.
0:25:36 > 0:25:38I'm meeting him as a potential client.
0:25:51 > 0:25:55He tells me he's used to selling properties to Brits,
0:25:55 > 0:25:57and has special legal expertise.
0:26:11 > 0:26:14Tom's estate agency licence in Italy
0:26:14 > 0:26:17means he's the one who will draw up some of the legal paperwork.
0:26:34 > 0:26:37So, a solicitor the Scottish regulation system
0:26:37 > 0:26:38deemed to be dishonest,
0:26:38 > 0:26:41found guilty of deception and misleading clients,
0:26:41 > 0:26:43is going to be doing some of the legal work
0:26:43 > 0:26:45for my £500,000 house purchase.
0:26:45 > 0:26:49A man whom, in the opinion of our panel of experts,
0:26:49 > 0:26:51should have been struck off.
0:26:51 > 0:26:53As Murray drove me back to my car for the last time,
0:26:53 > 0:26:56he left me with these comforting words.
0:27:05 > 0:27:08Thomas Murray is doing nothing illegal
0:27:08 > 0:27:10in his new life as an estate agent,
0:27:10 > 0:27:13but he's left behind a number of dissatisfied clients,
0:27:13 > 0:27:16one of whom is still waiting to be paid the fees
0:27:16 > 0:27:18and compensation he was awarded.
0:27:26 > 0:27:28His punishments are, as I've said already,
0:27:28 > 0:27:31the decision of the Discipline Tribunal,
0:27:31 > 0:27:33which is not part of the Law Society.
0:27:33 > 0:27:36The Law Society has pursued this gentleman whenever the evidence
0:27:36 > 0:27:40has been there and the Tribunal has taken decisions to deal with him.
0:27:40 > 0:27:43Is Mr Murray the kind of person you want within the profession?
0:27:43 > 0:27:45Well, I would imagine not.
0:27:45 > 0:27:48I don't think the Law Society of Scotland could be expected
0:27:48 > 0:27:49to deal with estate agents in Italy.
0:27:49 > 0:27:51I really think that is beyond the compass.
0:27:51 > 0:27:55But one would expect the Law Society to deal with Thomas Murray.
0:27:55 > 0:27:57The Law Society of Scotland later told us
0:27:57 > 0:28:02the case against Thomas Hugh Murray remains open due to his failure
0:28:02 > 0:28:07to pay the fees and compensation, as ordered by the tribunal.
0:28:07 > 0:28:10We've since discovered the Law Society intends to submit
0:28:10 > 0:28:14a new complaint concerning Mr Murray to the SSDT.
0:28:14 > 0:28:18Mr Murray declined to give a comment to this programme.
0:28:18 > 0:28:21However, through his solicitor, he pointed out that he'd gained
0:28:21 > 0:28:27a decree against Neil McKechnie for £150,000, which remained unpaid.
0:28:29 > 0:28:33It's struck me again and again throughout this investigation
0:28:33 > 0:28:36how the client - the person who seeks legal services,
0:28:36 > 0:28:39possibly at the most vulnerable point in their life -
0:28:39 > 0:28:44is the one who so often feels let down by the regulation system.
0:28:44 > 0:28:46So, until we have a system of regulation
0:28:46 > 0:28:49which is seen to be policing the dishonest,
0:28:49 > 0:28:53can the client ever feel confident
0:28:53 > 0:28:56that true justice is being delivered?